4 UNITED STATES DISTRICT COURT 5 6 EASTERN DISTRICT OF CALIFORNIA 7 GREAT AMERICAN INSURANCE Case No. 1:24-cv-01001-JLT-SAB 8 COMPANY, FINDINGS AND RECOMMENDATIONS 9 Plaintiff, RECOMMENDING GRANTING PLAINTIFF’S MOTION FOR DEFAULT 10 v. JUDGMENT
11 ORDER REQUIRING SERVICE ON REVOLUTIONARY PRODUCTIONS INC. DEFENDANT WITHIN THREE DAYS a/k/a Sum of Us Festival, 12 (ECF No. 37) 13 Defendant. OBJECTIONS DUE WITHIN FOURTEEN 14 DAYS 15 Pending before the Court is Plaintiff Great American Insurance Company’s (“Plaintiff”) 16 motion for default judgment. Plaintiff seeks default judgment against Defendant Revolutionary 17 Productions Inc. (“Defendant”). No opposition to the motion was filed. On May 13, 2026, the 18 Court held a hearing on the motion, at which no appearance was made on behalf of Defendant. 19 Having considered the moving papers, the declarations and exhibits attached thereto, 20 Defendant’s nonappearance, as well as the Court’s file, the Court issues the following findings 21 and recommendations recommending granting Plaintiff’s motion for default judgment. 22 II. 23 RELEVANT BACKGROUND 24 A. The Underlying Prelitigation Claim 25 Plaintiff filed this action for declaratory judgment under 28 U.S.C. § 2201(a) to be 26 relieved of any duty to defend or indemnify Defendant under an insurance policy for injuries 27 sustained by third party Natalie Noghrey (“Noghrey”) while attending the Sum of Us Festival 28 1 2023 (the “Festival”). (ECF No. 30 (“FAC”), ¶¶ 1-2.) This action arises from Noghrey’s 2 complaint against Sum of Us in Natalie Noghrey v. Revolutionary Productions, Inc. aka Sum of 3 Us Festival, et al., County of San Francisco Superior Court Case No. CGC-25-629071. (FAC 4 ¶ 28; Ex. E.) 5 According to Plaintiff’s complaint, Noghrey was drinking alcohol on the evening of 6 September 15, 2023 while attending the Festival. (Id. ¶ 20.) The Festival furnished some of the 7 alcohol Noghrey consumed. (Id. at ¶ 26.) Plaintiff provides three receipts for alcohol purchases 8 allegedly made by Noghrey between 8:22 p.m. and 11:46 p.m., each identifying Defendant as 9 the retailer. (Id. at ¶ 27; Ex. D.) Plaintiff alleges the liquor license for the event was 10 nontransferable and issued to the Social Influence Foundation. (FAC ¶ 26.) The bartenders on 11 the night of the incident entered into separate written Volunteer Agreements for the Festival 12 with Defendant whereby they agreed to provide services in exchange for free or discounted 13 entry into the Festival. (Id. at ¶¶ 26, 27; Ex. C.) Plaintiff alleges that Defendant paid the 14 bartenders their bartending tips from the Festival. (FAC ¶ 27.) 15 As the evening progressed, Festival organizers and staff determined that Noghrey was 16 excessively intoxicated and that she needed to be taken back to her campsite. (FAC ¶ 23.) 17 When Festival organizer, Nadia Eker, and employee, Iris Triska, attempted to walk Noghrey in 18 the direction of her campsite, Eker and Triska identified a golf cart being driven by employee, 19 Jess Weiner. (Id.) Weiner was transporting another attendee to the medical area. (Id.) Eker 20 and Triska asked Weiner if they could ride on the golf cart to either reach the command center, 21 the medical area, or get as close as possible to Noghrey’s cabin. (Id.) 22 Between approximately 1:20 a.m. and 2:00 a.m. on September 16, 2023, Weiner made a 23 right turn and Noghrey allegedly fell out of the golf cart and hit her head on the pavement, 24 rendering her unconscious. (FAC ¶¶ 20, 24.) Noghrey’s claim alleges that she was rushed to 25 the hospital where she stayed under 24-hour care for nearly a month before she was discharged. 26 (Id. at ¶ 24.) Noghrey claims she has sustained permanent injuries as a result of the incident. 27 (Id.) 28 Noghrey claims that Defendant owed Noghrey a heightened duty standard of care 1 because of her intoxicated state. (FAC ¶ 25.) Noghrey further claims Defendant breached its 2 heightened duty because Defendant’s employees failed to ensure Noghrey’s safety after they 3 placed her in the golf cart. (Id.) 4 B. Terms of the Policy 5 Plaintiff issued a policy number 472-50-34-01 to named insured Sports and Recreation 6 Providers Association for the policy period February 2, 2023 to February 2, 2025 (the “Master 7 Policy”). (FAC at ¶ 9; Ex. A (“Policy Common Declarations”) at 1.) Under the Certificate of 8 Coverage No. GAS114226 Form 36270 (Ed. 05/18) in connection with the Master Policy (the 9 “Certificate”), Defendant Revolutionary Productions, Inc.: Sum of Us Festival “qualifies as an 10 insured under the Master Policy for the period of September 11, 2023 to September 19, 2023.”1 11 (FAC ¶ 10; Ex. B.) The Certificate provides insurance subject to all its terms, conditions, and 12 limitations and incorporates the Master Policy by reference. (Id.) The Certificate provides that 13 “[c]overage only applies to ‘Certificate Holders’ [i.e., Revolutionary Productions, Inc.: Sum of 14 Us Festival] for whom coverage has been placed in this program and by whom the premiums 15 have been paid. Coverage does not apply to the ‘Policyholder’ [i.e., Sports and Recreation 16 Providers Association].” (FAC, Ex. B (“Certificate of Coverage”) at 3.) Coverage by the 17 insurance policy was limited to injury or damage caused by and occurring at the Sum of Us 18 Festival. (FAC, Ex. B (“Limitation of Coverage to Designated Operations or Locations”) at 1.) 19 The Certificate affords (1) commercial general liability coverage with limits of insurance 20 of $1,000,000 each “occurrence”2 and in the aggregate, and (2) professional liability coverage 21 with limits of insurance of $1,000,000 each act, error, or omission and in the aggregate. (FAC, 22 Ex. B (“Certificate of Coverage”) at 1-2.) Notably, the Certificate indicates “liquor liability” 23 and “hired and non-owned autos” are “Not Covered.” (Id.) 24 / / /
25 1 Both the Master Policy and the Certificate are attached to the complaint and form the basis of Plaintiff’s claims. (FAC, Exs. A, B.) The Court finds both are incorporated by reference and may be considered. See Coto Settlement 26 v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010); see also Fed. R. Civ. P. 10(c). 2 The Master Policy defines “occurrence” as “an accident, including continuous or repeated exposure to 27 substantially the same general harmful conditions.” (FAC, Ex. A (“Commercial General Liability Coverage Form”) at 18.) 28 1 1. Commercial General Liability Coverage 2 The Master Policy provides commercial general liability coverage pursuant to Form CG 3 00 01 (Ed. 04/13). (FAC ¶ 12.) The Master Policy provides, in pertinent part, the following 4 coverage by Plaintiff for bodily injury and property damage liability: 5 a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of “bodily injury”3 or 6 “property damage” to which this insurance applies. We will 7 have the right and duty to defend the Insured against any “suit”4 seeking those damages. However, we will have no duty to 8 defend the Insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance 9 does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result… 10
11 b. This insurance applies to “bodily injury” and “property damage” only if: 12 (1) the “bodily injury” or “property damage” is caused by an 13 “occurrence” that takes place in the “coverage territory”;
14 (2) the “bodily injury” or “property damage” occurs during the 15 policy period… 16 (Id.; Ex. A (“Commercial General Liability Coverage Form”) at 1.) 17 The Master Policy’s commercial general liability coverage is subject to an “Amendment 18 of Liquor Liability Exclusion” endorsement, Form CG 21 50 (Ed. 04 13), which provides, in 19 pertinent part, that the insurance does not apply to:
20 “Bodily injury” or “property damage” for which any insured may be held liable by reason of: 21 (1) causing or contributing to the intoxication of any person, 22 including causing or contributing to the intoxication of any person because alcoholic beverages were permitted to be 23 brought on your premises, for consumption on your premises; 24
25 3 The Master Policy defines “bodily injury” as “physical injury, sickness, or disease, including death of a person. ‘Bodily injury’ also means mental injury, mental anguish, humiliation, or shock if directly resulting from physical injury, sickness, or disease to that person.” (FAC, Ex. A (“Social Service Agency General Liability Broadening 26 Endorsement”) at 4.)
27 4 The Master Policy defines “suit” as “a civil proceeding in which damages because of ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ to which this insurance applies are alleged….” (FAC, Ex. A 28 (“Commercial General Liability Coverage Form”) at 19.) 1 (2) the furnishing of alcoholic beverages to a person under the 2 legal drinking age or under the influence of alcohol; or
3 (3) any statute, ordinance or regulation relating to the sale, gift, 4 distribution or use of alcoholic beverages.
5 This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in: 6
7 (a) the supervision, hiring, employment, training or monitoring of others by that Insured; or 8 (b) providing or failing to provide transportation with respect to any 9 person that may be under the influence of alcohol;
10 if the “occurrence” which caused the “bodily injury” or “property 11 damage,” involved that which is described in paragraph (1), (2) or (3) above. 12 This exclusion applies only if you: 13 (1) manufacture, sell or distribute alcoholic beverages; 14
15 (2) serve or furnish alcoholic beverages for a charge whether or not such activity: 16 (a) requires a license; 17 (b) is for the purpose of financial gain or livelihood; 18
19 (3) serve or furnish alcoholic beverages without a charge, if a license is required for such activity; or 20 (4) permit any person to bring any alcoholic beverages on your 21 premises, for consumption on your premises. 22 (FAC ¶ 13; Ex. A (“Amendment of Liquor Liability Exclusion”) at 1.) 23 The Master Policy’s commercial general liability coverage is also subject to an “aircraft, 24 auto or watercraft exclusion,” which provides, in part, that the insurance does not apply to: 25 “Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto”5 or 26
27 5 The Master Policy defines “auto” as either (a) “a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or [b] any other land vehicle that is subject to a 28 compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally 1 watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.” 2 This exclusion applies even if the claims against any insured allege 3 negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that Insured, if the 4 “occurrence” which caused the “bodily injury” or “property damage” involved the ownership, maintenance, use or entrustment 5 to others of any aircraft, “auto” or watercraft that is owned or operated by or rented or loaned to any insured. 6 This [aircraft, auto, or watercraft] exclusion does not apply to: 7 (5) “bodily injury” or “property damage” arising out of: 8 (a) the operation of machinery or equipment that is 9 attached to, or part of, a land vehicle that would qualify under the definition of “mobile equipment” if 10 it were not subject to a compulsory or financial responsibility law or other motor vehicle insurance 11 law where it is licensed or principally garaged; or 12 (b) the operation of any of the machinery or equipment listed in paragraph f.(2) or f.(3) of the definition of 13 “mobile equipment.” 14 (FAC ¶ 15; Ex. A (“Commercial General Liability Coverage Form”) at 4-5.) 15 2. Professional Liability Coverage 16 The Master Policy also provides professional liability coverage, which provides in 17 pertinent part: 18 [Plaintiff] will pay those sums the Insured becomes legally obligated to pay as ‘damages’ because of any act, error, or omission 19 committed by: 20 (1) an insured in the rendering of or failure to render ‘Professional Services’; or 21 (2) another person or organization for whom the Named Insured 22 is vicariously liable, in the course of that person's or organization's rendering of or failure to render ‘Professional 23 Services’ for or on behalf of the Named Insured; as part of the Named Insured's operations as a social service, human 24 service, religious, educational, or cultural organization. 25 [Plaintiff] will have the right and duty to defend the Insured against any ‘suit’ seeking those ‘damages.’ However, [Plaintiff] will have 26 no duty to defend the Insured against any ‘suit’ seeking ‘damages’
27 garaged.” (FAC, Ex. A (“Commercial General Liability Coverage Form”) at 16.) However, ‘auto’ does not include ‘mobile equipment.’” (Id.; see also id. at 18 (providing definition of “mobile equipment”).) 28 1 for any act, error, or omission to which this insurance does not apply…. 2 (FAC ¶ 17; Ex. A (“Professional Liability Insurance”) at 1.) 3 The Master Policy’s professional liability coverage also provides, in pertinent part, that 4 the insurance does not apply to any: 5 e. “Damages” because of any liability by reason of: 6 (1) causing or contributing to the intoxication of any person; 7 (2) furnishing alcoholic beverages to a person under the legal 8 drinking age or under the influence of alcohol; or 9 (3) any statute, ordinance, or regulation relating to the sale, gift, distribution, or use of alcoholic beverages…. 10 p. “Damages” because of any liability arising out of the ownership, 11 maintenance, use, or entrustment to others of any aircraft, “auto,” or watercraft, whether or not owned or operated by, or 12 rented or loaned to, any insured. Use includes operation and 13 loading or unloading.
14 This exclusion applies even if the claim or “suit” against any insured alleges negligence or other wrongdoing in the 15 supervision, hiring, employment, training, or monitoring of 16 others by that Insured, if the liability arises from the ownership, maintenance, use, or entrustment to others of any aircraft, 17 “auto,” or watercraft, whether or not owned or operated by, or rented or loaned to, any insured. 18 (FAC ¶ 18; Ex. A (“Professional Liability Insurance”) at 2, 4.) 19 C. Plaintiff’s Allegations 20 Plaintiff alleges there is no coverage for the Noghrey claim under (1) the commercial 21 general liability coverage part of the Master Policy because both the liquor liability exclusion 22 and auto exclusion bars coverage (FAC ¶ 45); (2) the professional liability coverage part of the 23 Master Policy because the alleged damages are not because of an act, error, or omission 24 committed in the rendering of or failure to render “professional services” (id. at ¶ 46); or (3) the 25 professional liability coverage part of the Master Policy because both the liquor liability 26 exclusion and auto exclusion preclude coverage (id. at ¶ 47). Defendant allegedly disagrees 27 with Plaintiff’s contention that there is no coverage for the Noghrey claim and contends 28 1 Plaintiff is obligated under the terms of the Master Policy to indemnify and defend it in 2 connection to the Noghrey claim. (Id. at ¶¶ 51, 58.) Accordingly, Plaintiff seeks a judicial 3 determination that the Master Policy does not provide coverage for the Noghrey claim, and that 4 it therefore has no duty to defend nor indemnify Defendant in connection with the Noghrey 5 claim. (Id. at ¶¶ 49, 56.) 6 D. Procedural History 7 The operative complaint in this action is the First Amended Complaint filed on November 8 20, 2025. (ECF No. 30.) Defendant did not respond to the complaint. On March 23, 2026, 9 Plaintiff requested entry of default be entered against Defendant (ECF No. 32), and the Clerk of 10 Court entered default the following day. (ECF No. 34, 35.) 11 On March 31, 2026, Plaintiff filed a motion for default judgment. (ECF No. 37.) 12 Defendant did not file an opposition to the motion nor otherwise appear in this action. The 13 deadline to file an opposition has expired. See L.R. 230(c). 14 On May 13, 2026, the Court held a hearing with the courtroom open to the public. (ECF 15 No. 44.) Counsel Carys A. Arvidson appeared on behalf of Plaintiff. No one appeared on behalf 16 of Defendant. 17 III. 18 LEGAL STANDARD 19 “[D]efault judgments are ordinarily disfavored” because “[c]ases should be decided upon 20 their merits whenever reasonably possible.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616 21 (9th Cir. 2016) (quoting Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986)). Pursuant to 22 Federal Rule of Civil Procedure (“Rule”) 55, obtaining a default judgment is a two-step process. 23 Entry of default is appropriate as to any party against whom a judgment for affirmative relief is 24 sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil 25 Procedure and where that fact is made to appear by affidavit or otherwise. Fed. R. Civ. P. 55(a). 26 After entry of default, a plaintiff can seek entry of default judgment. Fed. R. Civ. P. 55(b). Rule 27 55(b)(2) provides the framework for the Court to enter a default judgment: 28 / / / 1 Entering a Default Judgment. 2 (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered 3 against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has 4 appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its 5 representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings 6 or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to: 7 (A) conduct an accounting; 8 (B) determine the amount of damages; 9 (C) establish the truth of any allegation by evidence; or 10 (D) investigate any other matter. 11 12 Id. 13 The decision to grant a motion for default judgment is within the discretion of the court. 14 PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002); see also 15 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). The Ninth Circuit has set 16 forth the following seven factors (the “Eitel factors”) that the Court may consider in exercising 17 its discretion: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s 18 substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the 19 action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due 20 to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure 21 favoring decisions on the merits. Eitel, 782 F.2d at 1471-72. 22 Generally, once default has been entered, “the factual allegations of the complaint, except 23 those relating to damages, will be taken as true.” Garamendi v. Henin, 683 F.3d 1069, 1080 (9th 24 Cir. 2012) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)); see also Fed. 25 R. Civ. P. 8(b)(6). The amount of damages must be proven at an evidentiary hearing or through 26 other means. Microsoft Corp. v. Nop, 549 F. Supp. 2d 1233, 1236 (E.D. Cal. 2008). 27 Additionally, “necessary facts not contained in the pleadings, and claims which are legally 28 insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1 1267 (9th Cir. 1992) (internal citation omitted). The relief sought must not be different in kind 2 or exceed the amount that is demanded in the pleadings. Fed. R. Civ. P. 54(c). 3 IV. 4 DISCUSSION 5 A. Jurisdiction and Service of Process 6 The Court previously addressed subject matter jurisdiction in its prior findings and 7 recommendations. (ECF No. 23.) The Court reaffirms that it has subject matter jurisdiction 8 because the parties are diverse and amount in controversy exceeds $75,000. See 28 U.S.C. 9 § 1332(a). 10 Likewise, the Court previously found that service of the complaint was properly 11 effectuated on Defendant consistent with federal and California law. (ECF No. 23.) Generally, 12 any pleading filed after the original complaint must also be served. Fed. R. Civ. P. 5(a)(1)(B). 13 However, service is not required on a party who is in default for failing to appear, unless the 14 pleading asserts a new claim for relief. Fed. R. Civ. P. 5(a)(2); see also L.R. 135(d). Because 15 the Clerk of Court previously entered default against Defendant and the First Amended 16 Complaint does not assert any new claims for relief, service of the First Amended Complaint 17 was not required under Federal Rule of Civil Procedure 5.6 18 B. Eitel Factors 19 For the following reasons, the Court finds that consideration of the Eitel factors weighs 20 in favor of granting default judgment in favor of Plaintiff. 21 1. Possibility of Prejudice Toward Plaintiff 22 Generally, where default has been entered against a defendant, a plaintiff has no other 23 means by which to recover against that defendant. PepsiCo, Inc., 238 F. Supp. 2d at 1177; 24 Moroccanoil, Inc. v. Allstate Beauty Prods., 847 F. Supp. 2d 1197, 1200-01 (C.D. Cal. 2012). 25 Here, the Court finds Plaintiff would be prejudiced if default judgment is not granted because
26 6 The Court observes that, out of an abundance of caution, Plaintiff emailed the First Amended Complaint to Defendant’s counsel, Andrew Cantor, on December 8, 2025, pursuant to counsel’s agreement to accept service via 27 email. (ECF Nos. 38-2, 38-3.) Plaintiff also provided counsel with notice of its intent to request entry of default and served courtesy copies of the Clerk of Court’s entries of default. (ECF Nos. 38-4, 38-5, 38-6.) The Court notes 28 however that such service was not required under Federal Rule of Civil Procedure 5. 1 Plaintiff would be denied a judicial determination as to whether it has a duty to indemnify and 2 defend Defendant. See Burlington Ins. Co. v. Diamond Partners, Inc., No. 1:10-CV-00100- 3 LJO, 2011 WL 284490, at *3 (E.D. Cal. Jan. 25, 2011), F&R adopted, 2011 WL 587108 (E.D. 4 Cal. Feb. 9, 2011). Accordingly, the Court finds this factor weighs in favor of default judgment. 5 2. Merits of Plaintiff’s Claims and Sufficiency of the Complaint 6 The second and third Eitel factors, taken together, “require that a plaintiff state a claim 7 on which the [plaintiff] may recover.” PepsiCo, Inc., 238 F. Supp. 2d at 1175. Plaintiff seeks a 8 declaratory judgment as to the scope of coverage of the Master Policy, pursuant to the 9 Declaratory Judgment Act, 28 U.S.C. § 2201. The Court first addresses whether Plaintiff has 10 adequately stated a claim for a declaratory judgment action, then turns to the sufficiency of the 11 complaint. 12 a. Declaratory Judgment Act 13 The Declaratory Judgment Act requires that a party seeking declaratory relief alleges 14 (1) an actual controversy (2) regarding a matter within the federal subject matter jurisdiction. 15 28 U.S.C. § 2201(a). A request for declaratory relief alleges an actual controversy when the 16 request is “definite and concrete, touching the legal relations of parties having adverse legal 17 interest,” and when it allows for specific and conclusive relief. Aetna Life Ins. Co. v. Haworth, 18 300 U.S. 227, 240-41 (1937). Once a court has determined whether an actual controversy 19 exists, the court must then determine whether to exercise its subject matter jurisdiction. Am. 20 States Ins. Co. v. Kearns, 15 F.3d 142, 143-44 (9th Cir. 1994). In deciding whether to exercise 21 its subject matter jurisdiction, the court should (1) avoid needless determination of state laws; 22 (2) discourage litigants from filing declaratory actions as a means of forum shopping; and 23 (3) avoid duplicative litigation. Government Employees Insurance Co. v. Dizol, 133 F.3d 1220, 24 1225 (9th Cir. 1998); Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942). 25 Plaintiff’s request for a judicial determination regarding its duties to defend and 26 indemnify Defendant under the Master Policy, as it relates to the underlying Noghrey claim, is 27 sufficiently “definite and concrete” to plead an actual controversy. Plaintiff alleges specific 28 facts showing a right to relief, including the relevant Master Policy provisions, Defendant’s 1 adverse positions as to its tender of coverage, and the underlying claim. The Court finds this 2 sufficient to allege an actual controversy exists. See Maryland Casualty Co. v. Pacific Coal & 3 Oil Co., 312 U.S. 270, 273 (1941) (holding that an actual controversy existed between insurer 4 and insured as to the duty to defend). 5 Additionally, the Court finds the above factors weigh in favor of it exercising subject 6 matter jurisdiction. The dispute involves a determination of whether the Master Policy covers 7 the underlying Noghrey claim. Such determination requires only an analysis of the Master 8 Policy and does not implicate novel issues of state law, suggest forum shopping, or a result in 9 duplicative litigation. Accordingly, the Court finds that declaratory relief is appropriate to 10 resolve the uncertainty surrounding Plaintiff’s obligations. 11 b. Whether the Master Policy Covers the Underlying Noghrey Claim 12 Turning to the sufficiency of Plaintiff’s complaint, Plaintiff alleges that there is no 13 coverage for the underlying Noghrey claim under (1) the commercial general liability coverage 14 part of the Master Policy because the liquor liability and auto exclusions bar coverage; (2) the 15 professional liability coverage part of the Master Policy because the alleged damages are not 16 because of an act, error, or omission committed in the rendering of or failure to render 17 “professional services”; and (3) the professional liability coverage part of the Master Policy 18 because the liquor liability and auto exclusions preclude coverage. (FAC ¶¶ 45-47.) The Court 19 addresses each in turn. 20 i. Commercial General Liability Coverage 21 The commercial general liability coverage part of the Master Policy provides that 22 Plaintiff would indemnify, or “pay those sums that the Insured7 becomes legally obligated to 23 pay as damages because of ‘bodily injury’…to which this insurance applies.” (FAC, Ex. A 24 (“Commercial General Liability Coverage Form”) at 1.) The Master Policy also provides that 25 Plaintiff has a “duty to defend the Insured against any ‘suit’ seeking those damages” except 26 7 An “insured” also includes the insured’s “‘volunteer workers’ only while performing duties related to the conduct 27 of [the insured’s] business, or [the insured’s] ‘employees,’…[] but only for acts within the scope of their employment…or while performing duties related to the conduct of [the insured’s] business.” (FAC, Ex. A 28 (“Commercial General Liability Coverage Form”) at 12.) 1 Plaintiff has “no duty to defend the Insured against any ‘suit’ seeking damages for ‘bodily 2 injury’ . . . to which this insurance does not apply.” (Id.) Plaintiff alleges these duties within 3 the commercial general liability coverage to indemnify and defend are not triggered for the 4 underlying Noghrey claim because Noghrey’s claim seeking damages for bodily injury is 5 excluded by (1) the liquor liability exclusion, and (2) the auto exclusion. (FAC ¶ 45.) 6 1) Liquor Liability Exclusion 7 The commercial general liability coverage’s amended liquor exclusion bars coverage for 8 “bodily injury” where an insured “caus[ed] or contibut[ed] to the intoxication of any person.” 9 (FAC, Ex. A (“Amendment of Liquor Liability Exclusion”) at 1.) The exclusion applies when 10 the insured “sell[s] or distribute[s] alcoholic beverages” or “serve[s] or furnish[es] alcoholic 11 beverages for a charge,” regardless of licensing requirements or whether the activity is for 12 financial gain. (Id.) 13 The Court finds Plaintiff has sufficiently pleaded the liquor liability exclusion applies. 14 Plaintiff alleges Defendant furnished the alcohol Noghrey consumed before her fall. (FAC 15 ¶ 26.) Plaintiff attaches receipts allegedly reflecting alcohol Noghrey purchased at the Festival, 16 on which Sum of Us is identified as the retailer of the alcoholic beverages. (Id. at ¶ 27; Ex. D.) 17 Plaintiff further alleges Defendant procured, through a written volunteer agreement, bartenders 18 for the Festival on the night of the incident. (Id. at ¶¶ 26, 27; Ex. C.) Taken together, these 19 allegations sufficiently plead that Defendant served and furnished alcoholic beverages for a 20 charge and thereby caused or contributed to Noghrey’s intoxication. Accordingly, the Court 21 finds that the liquor liability exclusion bars coverage under the commercial general liability 22 coverage. 23 2) The Auto Exclusion 24 The commercial general liability coverage excludes “‘bodily injury’. . . arising out of the 25 use or entrustment to others of any . . . ‘auto’ . . . owned or operated by or rented or loaned to 26 any insured.” (FAC, Ex. A (“Commercial General Liability Coverage Form”) at 4-5.) Under 27 this coverage, an “auto” means any “land motor vehicle . . . designed for travel on public roads” 28 or “any other land vehicle that is subject to a compulsory or financial responsibility law or other 1 motor vehicle insurance law where it is licensed or principally garaged.” (Id. at 16.) 2 The Court finds Plaintiff has sufficiently pleaded the auto exclusion applies. Plaintiff 3 alleges that the golf cart from which Noghrey fell qualifies as an “auto” within the meaning of 4 the policy.8 (ECF No. 37, p. 20.) Specifically, Plaintiff alleges that Sum of Us rented golf carts 5 for use at the Festival, including on paved public roadways designed for licensed motor vehicle 6 traffic, and that the golf cart at issue was being used for transportation on those roadways at the 7 time of the incident. (FAC ¶¶ 31, 41; Ex. E.) These allegations support that the subject golf 8 cart in the underlying action satisfies the definition of “auto” contained within this specific auto 9 exclusion. Accordingly, the Court finds that the auto liability exclusion bars coverage under the 10 commercial general liability coverage. 11 ii. Professional Services under the Professional Liability Coverage 12 The professional liability coverage provides, in relevant part, that Plaintiff will 13 indemnify “sums the Insured becomes legally obligated to pay as ‘damages’ because of any act, 14 error, or omission committed by an insured9 in the rendering of or failing to render ‘Professional 15 Services’ . . . as part of the Named Insured’s operations as a social service, human service, 16 religious, educational, or cultural organization.” (FAC, Ex. A (“Professional Liability 17 Insurance”) at 1.) Professional services includes any service that involves “specialized 18 education, knowledge, labor, judgment, and skill, and is predominantly mental or intellectual 19 (as opposed to physical or manual) in nature; and is provided as part of the Named Insured’s 20 operations as a social service, human service, religious, educational, or cultural 21 organization . . . .” (Id. at 9.) 22 Plaintiff alleges that there is no coverage for the underlying Noghrey claim under the 23 professional liability coverage part because the alleged damages do not arise from any act, error, 24 or omission committed in the rendering of or failure to render professional services. (FAC
25 8 Previously, this Court found that Plaintiff failed to plausibly allege that the subject golf cart was an “auto” as defined within the commercial general liability coverage’s auto exclusion. However, the Court now finds that 26 Plaintiff’s First Amended Complaint provides well-pleaded factual allegations for the Court that the golf cart satisfies the definition of “auto” within this specific auto exclusion. 27 9 The professional services coverage part of the Master policy provides that an “insured” also includes the named insured’s employees and volunteer workers, but only while performing duties related to the conduct of the 28 insured’s business. (FAC, Ex. A (“Professional Liability Insurance”) at 6.) 1 ¶ 46.) The Court agrees. Plaintiff alleges that Sum of Us was a “‘camping event’ and ‘the 2 leading wellness community for LGBTQ+ women, trans identities, and gender expansive 3 folks.” (FAC ¶¶ 21, 42.) Plaintiff further alleges that neither the event itself nor the furnishing 4 of alcohol or the transportation of attendees constitutes a service requiring specialized 5 education, knowledge, judgment, and skill nor was it predominantly mental or intellectual in 6 nature. (Id. at ¶¶ 43, 44.) The Court finds Plaintiff has adequately alleged that there is no 7 coverage for the underlying Noghrey claim under the professional liability coverage part of the 8 Master Policy. Accordingly, the Court need not reach the applicability of the liquor liability 9 and auto exclusions within that coverage part. 10 In sum, the Court finds that the second and third Eitel factors weigh in favor of default 11 judgment. 12 3. The Sum of Money at Stake in the Action 13 Under the fourth factor cited in Eitel, “the court must consider the amount of money at 14 stake in relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F Supp. 2d at 15 1176. Here, there is no sum of money at issue, as Plaintiff seeks only declaratory relief. (ECF 16 No. 37, p. 25.) Where a plaintiff’s claim is not for monetary damages, some courts in this 17 Circuit—including Courts in this district—have determined that this factor weighs in favor of 18 granting default judgment. See, e.g., Nautilus Ins. Co. v. Gonzalez, No. 1:20-cv-1675 NONE 19 JLT, 2021 WL 3733115, at *5 (E.D. Cal. Aug. 24, 2021), F&R adopted, 2021 WL 4306260, at 20 *1 (E.D. Cal. Sept. 22, 2021). Accordingly, because Plaintiff’s claim does not seek monetary 21 relief, the Court finds this Eitel factor weighs in favor of default judgment. 22 4. The Possibility of a Dispute Concerning Material Facts 23 The fifth Eitel factor considers the possibility of a dispute concerning material facts. 24 “Upon entry of default, all well-pleaded facts in the complaint are taken as true, except those 25 relating to damages.” PepsiCo, 283 F. Supp. 2d at 1177 (quoting TeleVideo Sys. v. Heidenthal, 26 826 F.2d 915, 917-18 (9th Cir. 1987)). When a plaintiff’s complaint is well pleaded and the 27 defendant makes no effort to properly respond, the likelihood of disputed facts is low. See 28 Landstar Ranger, Inc. v. Parth Enters., 725 F. Supp. 2d 916, 921 (C.D. Cal. 2010). Given that 1 Plaintiff’s factual allegations are taken as true, that the Master Policy and the Certificate of 2 Coverage are set forth in Plaintiff’s complaint, and that Defendant has failed to appear and 3 defend in this action, the Court is not aware of any factual disputes that would preclude the 4 entry of default judgment. Accordingly, the Court finds this Eitel factor weighs in favor of 5 granting default judgment. 6 5. Whether Default Was Due to Excusable Neglect 7 The sixth Eitel factor considers the possibility that a defendant’s default resulted from 8 excusable neglect. PepsiCo, Inc., 238 F. Supp. 2d at 1177. Courts have found that where a 9 defendant was “properly served with the complaint, the notice of entry of default, as well as the 10 paper in support of the [default judgment] motion,” there is no evidence of excusable neglect. 11 Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 2001). 12 The Court finds this factor weighs in favor of granting default judgment because 13 Defendant has failed to file a responsive pleading or otherwise appear in this action, despite 14 being properly served. 15 6. Policy Favoring a Decision on the Merits 16 Generally, default judgments are disfavored, and a case should be decided on the merits 17 whenever possible. See Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985). 18 However, the policy favoring decisions on the merits does not weigh against entering default 19 judgment where, as here, Defendant’s failure to appear has made a decision on the merits 20 impossible at this juncture. PepsiCo, Inc., 238 F. Supp. 2d at 1177; see also Craigslist, Inc. v. 21 Naturemarket, Inc., 694 F. Supp. 2d 1039, 1061 (N.D. Cal. Mar. 5, 2010). Given the prejudice 22 to Plaintiff if default judgment is not granted, and the merits of the allegations contained in the 23 complaint, granting default judgment in this case would not violate the general policy under the 24 Federal Rules of Civil Procedure favoring decisions on the merits. See PepsiCo Inc., 238 F. 25 Supp. 2d at 1177. Accordingly, the Court finds the policy favoring decisions on the merit does 26 not weigh against entering default judgment against Defendant under these circumstances. 27 In sum, the Court finds that the Eitel factors weigh in favor of granting default 28 judgment. The Court now turns to the types of relief requested by Plaintiff. 1 C. Requested Relief 2 Having determined that the Eitel factors favor entry of default judgment, the Court now 3 turns to the question of remedies. Plaintiff confirms that it does not seek any monetary 4 damages. (ECF No. 37, p. 6.) Rather, Plaintiff seeks the Court’s declaration that (1) Great 5 American Insurance Company has no duty to defend Sum of Us in connection with the 6 underlying Noghrey lawsuit and (2) that Great American has no duty to indemnify Sum of Us 7 for any liability it may incur or has incurred in connection with the underlying claim. (ECF No. 8 37; FAC ¶¶ 48-61.) As stated above, the Court finds the entry of default judgment is 9 appropriate as to the commercial general liability and professional liability coverage part of the 10 Master Policy. Therefore, the Court finds that Plaintiff is entitled to a declaratory judgment that 11 it is under no obligation to defend or indemnify Defendant in the underlying lawsuit. 12 V. 13 CONCLUSION AND RECOMMENDATIONS 14 Based upon the foregoing, the Court HEREBY RECOMMENDS that Plaintiff’s motion 15 for default judgment (ECF No. 37) be GRANTED and that the Court issue judgment finding 16 and declaring that: 17 1. By reason of the liquor liability exclusion to the commercial general liability 18 coverage part of the Master Policy, Great American Insurance Company has no 19 duty to indemnify or defend Revolutionary Productions Inc., a California 20 corporation also known as Sum of Us Festival in connection with the Underlying 21 Lawsuit; and 22 2. The Master Policy’s professional liability coverage part does not provide 23 coverage to Sum of Us for the Underlying Lawsuit because the claimant’s 24 alleged damages do not arise out of an act, error, or omission committed in the 25 rendering of or failure to render “professional services.” 26 These findings and recommendations are submitted to the district judge assigned to this 27 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 28 (14) days of service of this recommendation, any party may file written objections to these 1 | findings and recommendations with the Court and serve a copy on all parties. Such a document 2 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 3 | district judge will review the magistrate judge’s findings and recommendations pursuant to 28 4 | US.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 5 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 6 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 Finally, Plaintiff is HEREBY ORDERED to serve a copy of these findings and 8 || recommendations on Defendant within three (3) days of entry of these findings and 9 | recommendations. 10 IT IS SO ORDERED. tf (Sc 12 | Dated: _ May 13, 2026 OF STANLEY A. BOONE 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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